Published: February 28, 1860

(Page 3 of 9)

This act also was passed without yeas and nays. In the Congress which passed it, there were two of the "thirty-nine." They were ABRAHAM BALDWIN and JONATHAN DAYTON. As stated in the case of Mississippi, it is probable they both voted for it. They would not have allowed it to pass without recording their opposition to it, if, in their understanding, it violated either the line properly dividing local from Federal authority, or any provision of the Constitution.

In 1819-20, came, and passed, the Missouri question. Many votes were taken, by Yeas and Nays, in both branches of Congress, upon the various phases of the general question. Two of the "thirty-nine" -- RUFUS KING and CHARLES PINCKNEY -- were members of that Congress. Mr. KING steadily voted for Slavery prohibition and against all compromises, while Mr. PINCKNEY as steadily voted against Slavery prohibition, and against all compromises. By this Mr. KING showed that, in his understanding, no line dividing local from Federal authority, nor anything in the Constitution, was violated by Congress prohibiting Slavery in Federal territory; while Mr. PINCKNEY, by his votes, showed that in his understanding there was some sufficient reason for opposing such prohibition in that case.

The cases I have mentioned are the only acts of the "thirty-nine," or of any of them, upon the direct issue, which I have been able to discover.

To enumerate the persons who thus acted, as being four in 1784, three in 1787, seventeen in 1789, three in 1798, two in 1804, and two in 1819-20; there would be thirty-one of them. But this would be counting JOHN LANGDON, ROGER SHERMAN, WM. FEW, RUFUS KING, and GEORGE READ, each twice, and ABRAHAM BALDWIN four times. The true number of those of the "thirty-nine" whom I have shown to have acted upon the question, which, by the text, they understood better than we, is twenty-three, leaving sixteen not shown to have acted upon it in any way.

Here, then, we have twenty-three of our "thirty-nine" fathers who framed the Government under which we live, who have, upon their official responsibility and their corporal oaths, acted upon the very question which the text affirms they "understood just as well and even better than we do now;" and twenty-one of them -- a clear majority of the whole "thirty-nine" -- so acting upon it as to make them guilty of gross political impropriety, and willful perjury, if, in their understanding, any proper division between local and Federal authority, or anything in the Constitution they had made themselves, and sworn to support, forbade the Federal Government to control as to Slavery in the Federal Territories. Thus the twenty-one acted; and, as actions speak louder than words, so actions under such responsibility speak still louder.

Two of the twenty-three voted against Congressional prohibition of Slavery in the Federal Territories, in the instances in which they acted upon the question. But for what reasons they so voted is not known. They may have done so because they thought a proper division of local from Federal authority, or some provision or principle of the Constitution, stood in the way; or they may, without any such question, have voted against the prohibition on what appeared to them to be sufficient grounds of expediency. No one who has sworn to support the Constitution, can conscientiously vote for what he understands to be an unconstitutional measure, however expedient he may think it; but one may and ought to vote against a measure which he deems constitutional, if, at the same time, he deems it inexpedient. It, therefore, would be unsafe to set down even the two who voted against the prohibition, as having done so because, in their understanding, any proper division of local from Federal authority, or anything in the Constitution, forbade the Federal Government to control as to Slavery in Federal Territory.

The remaining sixteen of the "thirty-nine," so far as I have discovered, have left no record of their understanding upon the direct question of Federal control of Slavery in the Federal Territories. But there is much reason to believe that their understanding upon that question would not have appeared different from that of their twenty-three compeers, had it been manifested at all.

For the purpose of adhering rigidly to the text, I have purposely omitted whatever understanding may have been manifested, by any person, however distinguished, other than the thirty-nine fathers who framed the original Constitution; and, for the same reason, I have also omitted whatever understanding may have been manifested by any of the "thirty-nine" even, on any other phase of the general question of Slavery. If we should look into their acts and declarations on those other phases, as the foreign Slave-trade, and the morality and policy of Slavery generally, it would appear to us that on the direct question of Federal control of Slavery in Federal Territories, the sixteen, if they had acted at all, would probably have acted just as the twenty-three did. Among that sixteen were several of the most noted Anti-Slavery men of those times -- Dr. FRANKLIN, ALEXANDER HAMILTON and GOUVERNEUR MORRIS -- while there was not one now known to have been otherwise, unless it may be JOHN RUTLEDGE, of South Carolina.